J. J. BALOCH
The dilemma in Pakistan’s criminal justice system is deep-rooted and widespread in our societal structure, political traditions, statutory ethos, popular apathy, and institutional turf wars. An autopsy of our criminal justice reveals in an unmistakable way the long list of factors that go uninterrupted in haunting everyone including the public, media, academia, politics and governance.
The form and structure of the state, the modes of its governance and the fundamental paradigm of its regulatory regimes always reflect the essence of society’s culture. However, the human culture is the most ancient and the most powerful influence on human thinking about the perspectives of living and of the moving spirit behind the civilisation.
Ours is, indeed, an outlived criminal justice system; it is incapacitated to live up to the changing times. Our criminal justice fails to be at par with challenges triggered by the age of terror, borderless world, human rights, rule of law, due process of law, age of digits and many similar influences.
The elitist power culture is the core issue in addressing the very fundamental irritants in our criminal justice system. The elitist ethos of our societal structure represented by feudal mindsets and nuisance gamers continue to pre-empt all progressive reform efforts of all our enlightened statesmen. All those who matter because of their ascribed status whether they hail from any segment or interest group ranging from politics, statecraft, bureaucracy, media, civil society, landed gentry leave no stone unturned to perpetuate their status quo to the extent of converting all public interests into their personal and private businesses interests. The common man is yet to attain freedom which is mortgaged in the contours of dynastic democratic tradition in our country.
Political Interference in public department’s especially criminal justice institutions is another problem area. In Pakistan, the entire criminal justice system has been adversely affected by politically motivated policies and practice designed to weaken its structure. Those public servants who maintain the integrity and resist tooth and nail to deny dancing to the tunes of politicians and all others who one way or the other matter in the power structure in Pakistan are either transferred or removed from the service through engineered allegations and concocted departmental enquiries.
As a consequence, the criminal justice system has lost public confidence as a trustworthy and reliable mechanism to redress the public grievances on basis of merit. Many surveys conducted by independent groups and human rights commission of Pakistan time and again testify the fact that 80% of Pakistani Public have no confidence in CJS institutions and believe that they serve regime and protect the powerful lot only. There has reportedly been serious rule of law issues.
We also lack in criminal justice policy principles. It works unsystematically. The idealistic core of the system is dry and hollow within. The policy for CJS is important and considered as the best practice to enforce the law, ensure justice and maintain public peace and order. Such ideals of the policy are the absolute wasteland in Pakistan where, unfortunately, ad-hoc measures reign supreme, fitting the elitist scheme of things.
Our CJS is yet to adopt the technology. The technology deficit takes our system to nowhere but to the perpetual and utter state of stagnancy and retrogression. The proper use of modern technology of forensics, telemetry, biometrics, digitalism, database formations, and documentation is missing. Its approaches are doubt-driven and not evidence-based.
Sadly to say, we are yet to think of CJS innovations that have been taking place worldwide in last three decades. In order to rise equal to the burgeoning challenges of crime and justice, expanding mandate of CJS institutions specially the gatekeepers -the police, and also rising public expectations within promising democracies, the governments of modern day are left with very thin choices to ignore exploring new ways of reviewing the basic missions of police, their core strategies, and the relationship of police with the community they are sworn to serve.
Despite a number of CJS committees and commissions constituted time and again in 70 years of our country’s age had very insightful and remarkable ideas of renovating CJS but regrettably all withered away in the serious storms of vested interests of bureaucratic and political nature? The most outstanding, to name a few, has been the Police Order 2002 which too saw the light of the day during Musharaf’s autocracy got infected with bureaucratic dengue virus in Punjab and political HIV in Sindh and Balochistan.
Lovely, the democratic ideals and rule of law culture spread in our country in 21st century bring the military-clone democratic order of Musharaf to its logical end in a peaceful manner yet the ill-panned and unregulated advancements resulted out of judicial activism brought the CJS institutions in the crossfire of judicial and executive battles of deadly nature in which the police and prosecution suffered irreparable collateral damages finally creating the environment of serious mistrust between the honourable courts and the police services and other law enforcement agencies related to the investigations of the crime, terrorism, corruption, and elections. This gap still exists and is readable in landmark Panama-gate judgement of the supreme court of Pakistan issued on 20th April 2017.
Not being a part and parcel of sacred CJS process the Media, both electronics and print, in Pakistan have self-assumed the role of justice dispensing agent through a well-thought-out and well-planned phenomenon of media trials of the issues of social as well as national nature allowing the space for many outsiders to get involved in the job that not at all is their business. The involvement of media in everything statutory and governmental is hardly serving anybody’s interest except eroding the basic functions of CJS institutions, influencing police investigations and the courts’ decisions.
Besides all this, our CJS lack counterterrorism capacity. Our police and civilian law enforcement agencies are not considered worth to fight the menace of terrorism in our country. As a consequence, our national action plan is being executed through our military and paramilitary forces and that is why military courts have been established to carry out that daunting job of executing the terrorists. Our superior courts are left with thin choices of trying police officers in ‘forced disappearances’ cases more than they have to execute the terrorists.
The very fundamental issue of our CJS is also unequal access to justice. Justice Nasir Aslam Zahid in one of his articles refer to Michael Anderson, a CJS expert, who writes:
“First, Justice in its current form is part of the problem. Secondly, the poor see the institutions of justice not as a source of protection, but as entities to be avoided. Thirdly, where justice institutions are seen not as the part of the solution but rather a part of the problem, it is hardly surprising that access to them is not especially attractive. Fourthly, improved access to courts will be of little use if it means greater access to delay, harassment, bribe-taking, and unresponsive systems. Fifthly, in this context, the question for judges becomes: how to ensure that justice institutions are not themselves sources of injustice! Lastly, delay in criminal justice negates several fundamental rights including the right to freedom of movement and dignity of man.”
The last but not the least, many experts believe that our criminal justice system is discriminatory to the core. Despite all claims and proclaims biases on the basis of gender and class at all levels of CJS are deeply entrenched. Our CJS treats people of different backgrounds differently and the powerful and influential have long hands and large brains to manoeuvre it to their comforts.
As a result, we have been co-existing with a criminal justice system which appears to be more criminally-toned than justice-driven:
- it neither punishes crime nor offers Justice to the victim;
- many criminals go scot free and many victims await justice;
- the conviction rate is abysmally low;
- there is nothing like corrections of criminals;
- society rely on outside court settlements of their issues even in the serious crimes like felony;
- the existence of Jirga, Shariah law and military courts speaks volumes of the fragility and infectivity of our CJS;
- and also our CJS is dead on future crime challenges which intensively connected world with high openness has in store for it.
Pakistan’s CJS is outdated and dysfunctional and needs drastic reforms and Criminal Justice Policy. For CJP criminal justice policy research is sin qua non. We should establish Criminal Justice Policy Institute.
Ultimately and realistically, we are left with no any criminal justice system. The Bottlenecks in the reformation of CJS might be the Political & the Bureaucratic “Vested Interests”. As a consequence, malfunctioning of our CJS continues to impact the core values of governance i.e. Justice, Freedom, writ of the law and Peace in Pakistan.
The Writer is a novelist and a law enforcement educator…